Jharkhand High Court
Angad Kumar Singh vs State Of Jharkhand on 8 August, 2013
Author: H.C. Mishra
Bench: H.C. Mishra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No.577 of 2013
Angad Kumar Singh @ Angad Singh ..... Petitioner
Versus
The State of Jharkhand .... Opposite Party
CORAM: HON'BLE MR. JUSTICE H.C. MISHRA
For the Petitioner : Mr. Kailash Prasad Deo
For the State : A. P.P.
-----
2/8.8.2013Heard learned counsel for the petitioner and learned counsel for the State.
2. Petitioner is aggrieved by the order dated 24.5.2013 passed by the learned Sessions Judge, Jamtara, in S.T. Case No.44 of 2013, whereby the Court below has found that there are sufficient materials for framing charge under Section 366A/34 of the IPC against the petitioner, and has directed the petitioner to appear in the Court for framing of the charge.
3. The petitioner has been made accused in Jamtara P.S. Case No.207 of 2008, corresponding to G.R. No.474 of 2008, for the offence under Section 366A/34 of the IPC, which was instituted against the petitioner and two unknown female accused persons, alleging that they kidnapped of the minor daughter of the informant. After investigation, the police submitted the charge-sheet against the petitioner for the same offence and accordingly, after taking cognizance, the case was committed to the Court of Session.
4. In the Court of Session, the petitioner filed his application under Section 228 of the Cr.P.C., stating that from the FIR, and the statements of the witnesses recorded by the police, it appeared that the case was for the offence for kidnapping simplicitor, of a minor girl, as no intention was imputed either in the FIR or in the evidence of the witnesses examined by the police. The petitioner took the plea that the offence under Section 366A IPC was not at all made out against him, rather it was a case for the offence under Section 363 of the IPC, only. The submissions of the petitioner found favour in the Court of Session, and accordingly by order dated 15.1.2009, passed in S.T. No.127 of 2008, the learned 5th Additional Session Judge, FTC, Jamtara, found that the case was not exclusively triable by the Court of Session, and transferred the case back to the Court of Chief Judicial Magistrate, Jamtara, for trial in accordance with law. The order passed by the learned 5th Additional Sessions Judge in S.T. No.127 of 2008, has been brought on record as Annexure - 4 to the application. It is submitted by the learned counsel for the petitioner that in the transferee Court, the charge was framed against the petitioner for the offence under Section 363 of the IPC and evidence was going on.
5. In the meantime, a supplementary charge-sheet was submitted in the said Jamtara P.S. Case No. 207 of 2008 against one Manoj Kumar Verma, again for the offence under Sections 366A/34 of the IPC. In the said supplementary -2- charge-sheet also, the cognizance was taken and the case was committed to the Court of Session, and Sessions Trial No.28 of 2012 was instituted against the co- accused Manoj Kumar Verma and the charge was framed against him under Section 366A/34 of the IPC. It appears that before the Sessions Judge, Jamtara, in Sessions Trial No.28 of 2012, which was pending against the co-accused Manoj Kumar Verma, an application was filed by the prosecution mentioning that the original records of said G.R. Case No.474 of 2008 was pending in the Court of S.D.J.M, Jamtara, for trial and the same may be called for and amalgamated with this case, whereupon the learned Sessions Judge passed the order recalling the original records of G.R. No.474 of 2008 to his Court. Subsequently, it appears that another Sessions Trial was instituted against the petitioner in the Court of Sessions Judge, Jamtara, which is Sessions Trial No.44 of 2013, in which, the Court below directed for framing the charge against this petitioner under Section 366A of the IPC, by order dated 24.5.2013, which has been challenged in the present revision application.
6. Learned counsel for the petitioner has submitted that the impugned order dated 24.5.2013 passed by the learned Sessions Judge, Jamtara, is absolutely illegal, in as much as, the Court of co-ordinate jurisdiction had already passed the order on the application of the petitioner finding that no offence was made out under Section 366A of the IPC, rather the offence was made only under Section 363 of the IPC, and the matter was transferred to the Court below for trial in accordance with law, where the trial was actually going on. It has been submitted that the impugned order dated 24.5.2013 tantamounts to recalling / setting aside the order passed by the Court of co-ordinate jurisdiction by the learned Sessions Judge and the same cannot be sustained in the eyes of law. Learned counsel further submitted that the witnesses examined so far in the Trial Court had not stated anything about the intention behind kidnapping of the victim and accordingly, there is no order of the Trial Court below committing the case to the Court of Session, and without there being any such order, the impugned order has been passed by the learned Sessions Judge, Jamtara.
7. Learned counsel for the State has opposed the prayer and has submitted that the trial of the other co-accused was going on before the Sessions Court and accordingly, there is no illegality in the impugned order in recalling the original records from the Court below and ordering for framing of the charge against the petitioner also under Section 366A of the IPC. It has also been submitted by the learned counsel for the State that the victim is still traceless.
8. After having heard learned counsels for both the sides and upon going through the impugned order and the order sheet of the Court below, which has been brought on record, I find force in the submission of the learned counsel for the petitioner. The order dated 15.1.2009 passed by the learned Addl. Sessions Judge-5th, Jamtara, in S.T. No.127 of 2008 clearly shows that the -3- application filed by the petitioner was adjudicated by him and it was found that the offence was not made out under Section 366A of the IPC, rather the offence was made out only under Section 363 of the IPC, and accordingly, the case was transferred to the Court of learned Chief Judicial Magistrate for trial in accordance with law. Once this order was passed by the learned Additional Sessions Judge, the case could not be transferred to the Court of Sessions Judge without there being any judicial order by the Trial Court on the basis of evidence on record that the case was actually made out under Section 366A of the IPC. This having not been done and there being no such order passed by the Trial Court, the learned Sessions Judge had no jurisdiction to recall the case back and to order for framing of the charge under Section 366A of the IPC against the petitioner. I find that the order dated 24.5.2013 passed by the learned Sessions Judge, Jamtara, in S.T. Case No.44 of 2013, is wholly without jurisdiction and the same cannot be sustained in the eyes of law.
9. Accordingly, the impugned order dated 24.5.2013 passed by the learned Sessions Judge, Jamtara, in S.T. No.44 of 2013 is hereby set-aside. This application is accordingly, allowed.
10. It goes without saying that the trial of the petitioner shall continue to be held before the Trial Court, where it was being held upon transfer by order dated 15.1.2009, passed in S.T. No.127 of 2008, by the learned 5th Additional Session Judge, FTC, Jamtara, until any contrary order is passed by the Trial Court in accordance with law.
(H. C. Mishra, J) R.Kumar